Commonwealth v. Thomas

179 A.3d 77

COMMONWEALTH of Pennsylvania, Appellant

v.Kareem THOMAS

No. 2164 EDA 2016

Superior Court of Pennsylvania.

Argued December 6, 2017

Filed February 01, 2018

Daniel F. Creedon, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Brandi L. McLaughlin, Philadelphia, for appellee.

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

The Commonwealth of Pennsylvania appeals from the order of the Court of Common Pleas of Philadelphia County granting the pretrial suppression motion filed by Appellee Kareem Thomas. After careful review, we reverse and remand for further proceedings.

The relevant facts and procedural history are as follows: in the early morning hours of February 21, 2016, at approximately 1:20 a.m., Philadelphia Police Officer Owen Schaeffer was on patrol in the 12^th District of Philadelphia when he received a radio report of a black male with a gun near 6400 Greenway Avenue. The report indicated that the male was dressed in a blue hooded sweatshirt and blue pants or blue jeans. Officer Schaeffer, who had been assigned to the 12^th district for ten years, indicated that the reported location of 6400 Greenway Avenue was known as a high-crime area due to numerous homicides and shootings. In fact, Officer Schaeffer was aware that a shooting had taken place in this area just hours before and a homicide had been committed in this area just days earlier.

Officer Schaeffer and his partner, Officer Gresham, responded to the reported location in their marked police vehicle. When they approached the block just minutes after receiving the dispatch, Officer Schaeffer took notice of a black male, later identified as Appellee, walking eastbound on the north side of Greenway Avenue. Appellee was wearing a black hooded sweatshirt, a black jacket, and black pants. After Officer Schaeffer circled the block, he noticed Appellee on the steps of a house. The officers repeatedly circled the block four or five times, and each time, Appellee would reverse his direction and look back at the officers. See Notes of Testimony (N.T.), 6/15/16, at 10 ("[h]e just kept changing directions each time I went around the block. He changed directions and—when I passed him, I could see him looking back at me in my rear view mirror").

On the last time the officers circled the block, they observed Appellee cross the street and walk westbound towards 65^th Street. Officer Schaeffer pulled his patrol car up next to Appellee, who had his hands in his pockets. When Officer Schaeffer asked to see Appellee's hands, Appellee refused to remove his hands from his pockets. Thereafter, Officer Schaeffer exited his patrol car, removed Appellee's hands from his pockets, and patted Appellee down. When Officer Schaeffer touched Appellant's right front jacket pocket, he immediately felt a gun. Officer Schaeffer recovered a firearm from Appellee's pocket and placed him under arrest.

Appellee was charged with several violations of the Uniforms Firearm Act (VUFA).¹ Thereafter, Appellee filed a suppression motion, claiming he was subjected to an unreasonable search and seizure as the officers did not have reasonable suspicion to stop and frisk him. On June 15, 2016, the lower court held a suppression hearing at which Officer Schaeffer testified. At the conclusion of the hearing, the lower court granted Appellee's motion.

The Commonwealth filed this timely appeal, certifying therein that the suppression court's order would terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d) (permitting prosecution to appeal from an interlocutory order if it certifies the order will terminate or substantially handicap the prosecution). The lower court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) statement, and the Commonwealth timely complied.

The suppression court filed a responsive opinion explaining the reasons for its ruling. Specifically, the court determined that suppression was warranted as the radio call did not provide adequate basis for an investigatory stop, the officers did not observe Appellee participating in criminal activity, and the officers did not point to any evidence that would suggest Appellee was armed and dangerous. The lower court emphasized that the officer's description of Appellee walking up and down the street was not indicative of criminal activity.

On appeal, the Commonwealth asserts that the suppression court erred in granting Appellee's suppression motion when (1) the officers responded to a report of a man with a gun in an area of high crime and gun related violence, (2) the officers observed Appellee suspiciously change direction and watch their patrol car each of the four or five times they circled the block, and (3) Appellee refused their request to remove his hands from his pocket.

In reviewing an appeal from an order granting a suppression motion, we are guided by the following standard:

When the Commonwealth appeals a suppression order, we consider only the evidence from [Appellee's] witnesses together with the portion of the Commonwealth's evidence which is uncontroverted. Our standard of review is limited to determining whether the suppression court's factual findings are supported by the record, but we exercise de novo review over the suppression court's conclusions of law.

Commonwealth v. Snyder , 599 Pa. 656, 963 A.2d 396, 400 (2009) (citations omitted). Further, "[a]ppellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress." Commonwealth v. Stilo , 138 A.3d 33, 35–36 (Pa.Super. 2016) (citation omitted). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa.Super. 2006) (quotation marks and quotation omitted).

Commonwealth v. Harris , 176 A.3d 1009, 2017 PA Super 402 (2017).

In this case, the Commonwealth argues the trial court erred in finding the arresting officers lacked the requisite suspicion to justify their protective frisk of Appellee. To evaluate the Commonwealth's challenge to the lower court's decision to suppress evidence obtained from the frisk, we begin our analysis by discussing whether the officers needed any level of requisite suspicion in their initial approach of Appellee.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from being subjected to unreasonable searches and seizures. Commonwealth v. Lyles , 626 Pa. 343, 350, 97 A.3d 298, 302 (2014). Search and seizure jurisprudence defines three levels of interaction between citizens and police officers and requires different levels of justification based upon the nature of the interaction.

Commonwealth v. Baldwin , 147 A.3d 1200, 1202–1203 (Pa.Super. 2016).

These categories include (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions. The first of these, a "mere encounter" (or request for information), which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.

Id. (citation omitted).

To determine whether and when a seizure has occurred, we employ "an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave." Commonwealth v. Strickler , 563 Pa. 47, 58, 757 A.2d 884, 889 (2000) (citations omitted).

In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained. In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.

Id. at 58–59, 757 A.2d at 890 (internal citation and footnotes omitted).

It is well-established that police officers may approach citizens and ask them questions without violating the Fourth Amendment:

Both the United States and Pennsylvania Supreme Courts have held that the approach of a police officer followed by questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (police can approach people at random, ask questions, and seek consent to search) (collecting cases); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in the street or in another public place, by asking him is he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen"); Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 11 (2003) ("the mere approach of police followed by police questioning ... does not amount to a seizure"); In re D.M., 566 Pa. 445, 781 A.2d 1161, 1164 (2001) ("the police may approach anyone in a public place to talk to him, without any level of suspicion").

Commonwealth v. Coleman , 19 A.3d 1111, 1117 (Pa.Super. 2011).

In this case, Officer Schaeffer and Officer Gresham responded to a report of a black male with a gun in area of high crime and violence. Although Appellee did not match the exact description of the suspect provided in the radio call, the officers' suspicions were aroused when they observed Appellee repeatedly change his direction and watch the officers closely as they continued to circle the block in their patrol car. Consistent with the aforementioned precedent, Officer Schaeffer did not...